topic: status, privileges and immunities of international...

A/CN.4/438 and Corr.1

(Consolidated) Fifth report on relations between States and international organizations(second part of the topic), by Mr. Leonardo Díaz-González, Special Rapporteur

Extract from the Yearbook of the International Law Commission:-

1991

Document:-

vol. II(1),

Topic:Status, privileges and immunities of international organizations, their officials, experts,

etc.

Copyright © United Nations

Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm)

RELATIONS BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS(SECOND PART OF THE TOPIC)

[Agenda item 7]

DOCUMENT A/CN.4/438*

Fifth report on relations between States and international organizations(second part of the topic), by Mr. Leonardo Diaz Gonzalez,

Special Rapporteur

[Original: Spanish][7 May 1991]

CONTENTS

Page

Agreements and conventions cited in the present report 92

Section Paragraphs

I. INTRODUCTION 1-2 95

II. ARCHIVES 3-45 95

A. Presentation of the subject 3-43 95

B. Draft article 12 44-45 99

HI. PUBLICATIONS AND COMMUNICATIONS FACILITIES 46-156 99

A. Preliminary observations 46-47 99

B. Publications 48-65 991. General considerations 48-49 992. Practice 50-65 100

C. Communications 66-155 102

1. Definition and legal texts 66-93 1022. Means of communication 94-155 105

(a) General considerations 94-102 105(b) Codes 103-106 106(c) The diplomatic bag 107-120 106(d) Diplomatic couriers 121 108(«?) Postal services 122-128 108(/) Telecommunications; broadcasting services 129-155 109

D. Draft articles 13 to 17 156 111

* Incorporating document A/CN.4/438/Corr. 1. This document supersedes the partial report previously issued atthe forty-second session of the Commission, in 1990, as document A/CN.4/432.

91

92 Documents of the forty-third session

Agreements and conventions cited in the present report

ABBREVIATIONS

Legislative Texts United Nations Legislative Series, Legislative Texts and Treaty Provisions con-cerning the Legal Status, Privileges and Immunities of InternationalOrganizations, 2 vols. (Sales Nos. 60.V.2 and 61 .V.3).

Diplomatic relations

Soun e

Convention regarding Diplomatic Officers (Havana, League of Nations, Treaty Series, vol. CLV, p. 259.20 February 1928)

Vienna Convention on Diplomatic Relations (Vienna, United Nations, Treaty Series, vol. 500, p. 95.18 April 1961)

Vienna Convention on Consular Relations (Vienna, Ibid., vol. 596, p. 261.24 April 1963)

Privileges and immunities and headquarters agreements

UNITED NATIONS

Convention on the Privileges and Immunities of the United Nations, Treaty Series, vol. l ,p . 15.United Nations (London, 13 February 1946)

United Nations and Switzerland: Ibid., p. 163.Interim Arrangement on Privileges and Immunitiesof the United Nations (Bern, 11 June 1946)

United Nations and United States of America: Ibid., vol. 11, p. 11.Agreement regarding the Headquarters of the UnitedNations (Lake Success, 26 June 1947)

United Nations and Chile: Ibid., vol. 314, p. 59.Agreement regulating conditions for the operation,in Chile, of the headquarters of the United NationsEconomic Commission for Latin America (Santiago,16 February 1953)

United Nations and Thailand: Ibid., vol. 260, p. 35.Agreement relating to the headquarters of the Eco-nomic Commission for Asia and the Far East inThailand (Geneva, 26 May 1954)

United Nations and Egypt: Ibid., p. 61.Exchange of letters constituting an agreement con-cerning the status of the United Nations EmergencyForce in Egypt (New York, 8 February 1957)

United Nations and Ethiopia: Ibid., vol. 317, p. 101.Agreement regarding the headquarters of the UnitedNations Economic Commission for Africa (AddisAbaba, 18 June 1958)

United Nations and Congo (Leopoldville): Ibid., vol. 414, p. 229.Agreement relating to the legal status, facilities,privileges and immunities of the United NationsOrganization in the Congo (New York, 27 Novem-ber 1961)

Relations between States and international organizations (second part of the topic) 93

Source

United Nations and Cyprus: Ibid., vol. 492, p. 57.Exchange of letters constituting an agreement con-

cerning the status of the United Nations Peace-keeping Force in Cyprus (New York, 31 March1964)

SPECIALIZED AGENCIES AND INTERNATIONAL ATOMIC ENERGY AGENCY

Articles of Agreement of the International Monetary As amended: IMF, Articles of Agreement of the Inter-Fund (Washington, 27 December 1945) national Monetary Fund (Washington, D.C., 1978).

Articles of Agreement of the International Bank for Re- As amended: IBRD, Articles of Agreement of the Inter-construction and Development (Washington, 27 De- national Bank for Reconstruction and Developmentcember 1945) (Washington, D.C., 1980).

Convention on the Privileges and Immunities of the United Nations, Treaty Series, vol. 33, p. 261.Specialized Agencies (New York, 21 November1947)

Switzerland and ILO: Ibid., vol. 15, p. 377.Agreement concerning the legal status of the Interna-

tional Labour Organisation in Switzerland, and Ar-rangement for the execution of the Agreement (Ge-neva, 11 March 1946)

Switzerland and WHO: Ibid., vol. 26, p. 331.Agreement concerning the legal status of the World

Health Organization, and Arrangement for the exe-cution of the said Agreement (Geneva, 17 July 1948)

Italy and FAO: Legislative Texts, vol. II, p. 187.Agreement regarding the headquarters of the Food

and Agriculture Organization of the United Nations(Washington, [D.C.], 31 October 1950)

ICAO and Canada: United Nations, Treaty Series, vol. 96, p. 155.Agreement regarding the headquarters of the Interna-

tional Civil Aviation Organization (Montreal, 14April 1951)

Argentina and Pan American Sanitary Bureau: Legislative Texts, vol. II, p. 290.Agreement regarding the establishment of a Zone

Office in the City of Buenos Aires (Buenos Aires, 21August 1951)

Egypt and FAO: Ibid., p. 212.Agreement regarding the Near East Regional Office

of the Food and Agriculture Organization of theUnited Nations (17 August 1952)

UNESCO and France: United Nations, Treaty Series, vol. 357, p. 3.Agreement regarding the headquarters of UNESCO

and the privileges and immunities of theOrganization on French Territory (Paris, 2 July1954)

WMO and Switzerland: Ibid., vol. 211, p. 277.Agreement to govern the legal status of the World

Meteorological Organization in Switzerland (Ge-neva, 10 March 1955)

ICAO and Mexico: Legislative Texts, vol. II, p. 180.Agreement regarding the International Civil Aviation

Organization's Regional Office for North Americaand the Caribbean (Mexico City, 20 December 1956)

Thailand and FAO: Ibid., p. 220.Agreement regarding the Far East Regional Office of

the Food and Agriculture Organization of the UnitedNations (entered into force on 6 February 1957)


Source

Agreement on the Privileges and Immunities of the In- United Nations, Treaty Series, vol. 374, p. 147.ternational Atomic Energy Agency (Vienna, 1 July1959)

IAEA and Austria: Ibid., vol. 339, p. 111.Agreement regarding the headquarters of the Interna-

tional Atomic Energy Agency (Vienna, 11 December1957)

OTHER INTERGOVERNMENTAL ORGANIZATIONS

Agreement on Privileges and Immunities of theOrganization of American States (15 May 1949)

General Agreement on Privileges and Immunities of theCouncil of Europe (Paris, 2 September 1949)

Convention on the Privileges and Immunities of theLeague of Arab States (10 May 1953)

Agreement establishing the Inter-American Develop-ment Bank (Washington, [D.C.], 8 April 1959)

OAS, Law and Treaty Series, No. 31 (Washington,D.C., 1949); Legislative Texts, vol. II, p. 377.

United Nations, Treaty Series, vol. 250, p. 13.

Legislative Texts, vol. II, p. 414.


Postal agreements

United Nations and Switzerland:Agreement on the supply of official stamps to theEuropean Office of the United Nations at Geneva(Geneva, 14 September 1949)

United Nations and United States of America:Postal Agreement (New York, 28 March 1951)

United Nations and Lebanon:Exchange of letters constituting an agreement con-

cerning the United Nations Emergency Force postalarrangements (Gaza, 21 December 1957 and 5 Feb-ruary 1958, and Beirut, 20 January 1958)

United Nations and Switzerland:Postal Agreement (Geneva, 11 December 1968)

Ibid., vol. 43, p. 327.

Ibid., vol. 108, p. 231.

Ibid., vol. 286, p. 199.

Ibid., vol. 692, p. 373.

Telecommunications

United Nations and Switzerland:Exchange of letters of 22 October and 4 November1946, annexed to the Interim Arrangement of 11June 1946

International Telecommunication Convention, AtlanticCity, 1947 (2 October 1947)

International Telecommunication Convention, BuenosAires, 1952 (22 December 1952)

International Telecommunication Convention, Geneva,1959(21 December 1959)

Legislative Texts, vol. I, pp. 202-204.


ITU, International Telecommunication Convention,Buenos Aires, 7952 (Geneva, 1953).

ITU, International Telecommunication Convention,Geneva, 1959(Geneva, [I960]).

International Telecommunication Convention,Montreux, 1965 (12 November 1965)

ITU, International Telecommunication Convention,Montreux, 1965 (Geneva, [1966]).


I. Introduction

1. This report, except for the section containing theproposed texts of draft articles 13 to 17, was originallysubmitted to the Commission at its forty-second sessionas document A/CN.4/432. Owing to lack of time, the re-port could neither be introduced nor considered by theCommission.1 The report was therefore resubmitted inits present form at the forty-third session.

1 Yearbook . . . 1990, vol. II (Part Two), p. 84, para. 422.

2. The present report consists of two parts. The firstpart concerns the archives of international organizationsand contains an article on this question that completespart III (Property, funds and assets) of the draft articles.The second part concerns the publications and communi-cations of international organizations and contains provi-sions constituting part IV (Publications and communica-tions facilities) of the draft articles.

II. Archives

A. Presentation of the subject

3. Like States, international organizations are in per-manent communication with member States and witheach other. They maintain a steady correspondence withpublic and private institutions and private individuals.They keep files on their staff, on projects, on studies andon any other action in which they may be involved witha view to achieving the aims for which they were cre-ated. Lastly, they possess a body of documentationwhich is the backbone of their operations.

4. All this documentation, which is protected and keptsafe, is what constitutes the archives of internationalorganizations. International intergovernmental organi-zations must enjoy inviolability of their archives in orderto preserve, protect and safeguard the confidentiality ofthese archives and to protect not only their own securityand their right to privacy and private property but alsothe security and privacy of documentation addressed orentrusted to them, particularly by member States.

5. International organizations are subjects of interna-tional law and, like States, enjoy inviolability of their ar-chives.

6. For States, the inviolability of archives is closelylinked to the inviolability of diplomatic premises. Thisprinciple is enshrined in article 24 of the Vienna Con-vention on Diplomatic Relations:

Article 24

The archives and documents of the mission shall be inviolable atany time and wherever they may be.

7. Likewise, the inviolability of the archives of interna-tional organizations is closely linked to the inviolabilityof the premises occupied by those organizations. TheConvention on the Privileges and Immunities of theUnited Nations2 expands on the principle of the inviola-

bility of archives when it provides, in its article II, sec-tion 4, that:

The archives of the United Nations, and in general all documentsbelonging to it or held by it, shall be inviolable wherever located.

We are thus talking about not only all the Organization'sown documents but also those held by it, in other wordsthose in its safekeeping.

8. The concept of the archives of internationalorganizations has been spelt out in a number of interna-tional instruments concluded by some internationalorganizations, in particular in the Agreement betweenthe United Nations and Chile concerning the headquar-ters of the United Nations Economic Commission forLatin America (ECLA).3 Article I, section 1 (g), of thatagreement states:

(g) The expression "archives of ECLA" means the records, corre-spondence, documents, manuscripts, photographs, cinematographfilms and sound recordings, belonging to or held by ECLA.

9. The Vienna Convention on Consular Relationsadopts a similar definition in its article 1, paragraph 1 (k):

{k) "consular archives" includes all the papers, documents, corre-spondence, books, films, tapes and registers of the consular post, to-gether with the ciphers and codes, the card-indexes and any article offurniture intended for their protection or safekeeping.

10. The Committee of Ministers of the Council ofEurope has adopted a similar definition,4 and article 31of the regulation of the Commission of the EuropeanCommunities of 1 July 1969 on mail and archives de-fines archives as comprising files and collections.

1 1. The issue, then, is one of protecting not only se-crecy but also the place where the secret is kept. In thecase of diplomatic and consular missions, the receivingState is under an obligation not only to refrain from try-ing to penetrate the secret but also to protect it by re-

2 Hereinafter the "General Convention".

3 Now ECLAC.4 Council of Europe, Privileges and Immunities of International Or-

ganisations, Resolution (69) 29 adopted by the Committee of Minis-ters of the Council of Europe on 26 September 1969 and explanatoryreport (Strasbourg, 1970), p. 29, para. 50.


specting the place where it is kept, and even to preventthird parties from violating it. This is the right to secrecydefined by the late Paul Reuter, in a famous article onthe problem, when he says that there can be "no person-ality or freedom without some degree of privacy, someprivate life, without a protective screen which hides anumber of secrets from the public eye".5

12. Article 24 of the Vienna Convention on Diplo-matic Relations (see para. 6 above) refers only to the in-violability of archives and makes no mention whatsoeverof the receiving State's obligation to protect themagainst third parties. However, it has always been tacitlyunderstood that the customary rule whereby the receiv-ing State is bound to protect the archives of a mission re-mains in force (article 14 (d) of the Havana Conventionregarding Diplomatic Officers). Similarly, the draft con-vention on diplomatic privileges and immunities drawnup by the Harvard Law School6 provides, in article 5,that a receiving State "shall protect the archives of amission from any violation and shall safeguard their con-fidential character, wherever such archives may be lo-cated within the territory of the receiving State".

13. This duty to protect can clearly be inferred fromthe commentary to article 22 (Inviolability of the ar-chives) of the draft articles on diplomatic intercourse andimmunities,7 on which the Vienna Convention on Diplo-matic Relations was based.

14. Reuter, in the above-mentioned article, goes a stepfurther by establishing a close relationship betweenautonomy, a prerequisite for the proper functioning of aninternational organization, and the right to privacy. Hesays that a certain right to privacy also gives recognitionto the autonomy of the group and that without privacythere can be no freedom, without freedom there can beno autonomy.8

15. There does not seem to be any valid reason for notapplying this rule to the archives of internationalorganizations.

16. The question was raised by Cahier whether therewas any need for a separate article on the inviolability ofarchives in the Vienna Convention on Diplomatic Rela-tions.9 It was, in fact, argued that, since diplomatic prem-ises were inviolable, the inviolability of their archiveswas automatically guaranteed. Both the Commission andthe 1961 United Nations Conference on Diplomatic In-tercourse and Immunities took the view that a separateprovision was necessary since the case might arise, andhad in fact arisen, where the archives of a mission werenot located, even if only temporarily, on the premises oc-cupied by the mission. What we have here is a specialduty of oversight and protection.10

5 P. Reuter, "Le droit au secret et les institutions internationales",Annuaire francais de droit international, 1956 (Paris), vol. II, p. 60.

6 Harvard Law School, Research in International Law. I. DiplomaticPrivileges and Immunities (Cambridge, Mass., 1932), pp. 15 et seq.

7 Yearbook ... 1958, vol. II, p. 96, document A/3859.8 Reuter, loc. cit., p. 61.9 P. Cahier, Le droit diplomatique contemporain (Geneva, Droz,

1962), pp. 209-210.10 See C. Rousseau, Droit international public, vol. IV, Les rela-

tions internationales (Paris, Sirey, 1980), p. 183.

17. This inviolability is absolute, for it continues to ap-ply to diplomatic missions even in the event of war orthe severance of diplomatic relations. There are a num-ber of legal precedents for this which have come to beviewed as typical. One concerns the archives of the for-mer Imperial Russian Legation at Bern. In the absence ofdiplomatic relations between the Soviet and Swiss Gov-ernments, the Swiss authorities placed the archives of theImperial Russian Legation under seal and refused toopen them to individuals wishing to consult them for thebenefit of private interests."

18. The principle of the inviolability of archives has attimes been disregarded, but only rarely. The two mostserious cases recorded in the legal literature are thesearch by the French authorities of the archives of theApostolic Nunciature in Paris on 11 December 1906, af-ter the severance of diplomatic relations between theHoly See and France on 30 July 1904, and the violationof the archives of the British Embassy in Petrograd bythe Soviet Government in 1918.12

19. Aside from these sporadic occurrences, which areby now part of history, the principle has been universallyaccepted. The United Nations itself has interpreted sec-tion 4 of article II of the General Convention as neces-sarily implying the inviolability of information containedin archives and documents as well as the actual archivesand documents themselves.13

20. In connection with judicial proceedings againstUnited Nations staff members, questions relating to theinviolability of the documents of the Organization havebeen raised on several occasions. In March 1949, theUnited States police arrested a member of the UnitedNations Secretariat on charges of espionage. The Perma-nent Representative of the State of which the staff mem-ber concerned was a national protested against this ac-tion on the ground that the official held the rank of ThirdSecretary in the Ministry of Foreign Affairs of his coun-try and that, consequently, the diplomatic immunity pro-tecting him remained in force even after his appointmentto the United Nations. In addition, the Permanent Repre-sentative alleged that information from United Nationsfiles had been made known to officials of the FederalBureau of Investigation. The Secretary-General repliedstating that information regarding the status of the offi-cial had been made known solely to his attorney.

21. A somewhat different situation arose in the case ofUnited States v. Keeney, where the defendant was prose-cuted for contempt of Congress following her refusal toanswer, when testifying before a Senate Sub-Committee,the question whether anyone in the State Department hadaided her in obtaining employment with the United Na-tions. The main issue in the case was whether thedefendant, as a former employee of the United Nations,

11 See the letter from the Swiss Political Department dated 10 Janu-ary 1 9 2 3 , in Repertoire suisse du droit international public, vo l . Ill(Bern, 1975), pp. 1501 et seq.

12 See Rousseau, op. cit., p. 184.13 See the study prepared by the Secretariat in 1967 on the practice

of the United Nations, the specialized agencies and IAEA concerningtheir status, privileges and immunities {Yearbook. .. 1967, vol. II,p. 238, document A/CN.4/L. 118 and Add. 1 and 2), para. 132.


was herself privileged from answering that question. TheDistrict Court held that her motion of privilege should bedenied.14 The Court of Appeals reversed the earlier con-viction and granted a new trial on the ground that the an-swer sought by the Sub-Committee, in so far as it de-pended upon data in United Nations files or upon infor-mation derived from those files, was rendered privilegedby the Charter and the Staff Rules of the United Nationsand could not legally be revealed by an official. One ofthe judges of the Court stated that the question posed

related to "unpublished information". The United Nations does nottell the world what recommendations underlie appointments of staffmembers. The United Nations Administrative Manual even definesunpublished information to include "the appointment... [of] or anyother confidential information concerning" a staff member. 1 think itplain that staff members would not have such unpublished and confi-dential information unless it had been made "known to them, by rea-son of their official position".15

22. The last words quoted in the above statement bythe judge were from staff rule 7 (now regulation 1.5 ofthe Staff Regulations of the United Nations), requiringstaff members not to communicate unpublished informa-tion "except in the course of their duties or by authoriza-tion of the Secretary-General". The Court also stated,with reference to Article 105, paragraph 2, of the Charterof the United Nations, that the privilege of non-disclosure as it applied to officials was "necessary forthe independent exercise of their functions in connectionwith the Organization".16

23. There have, however, been instances where infor-mation was supplied, not amounting to access to UnitedNations files, as in a case which arose in 1956. A personwho had previously held a United Nations short-term ap-pointment submitted a claim to the United Statesauthorities for unemployment insurance benefits. Therewas some question as to whether or not there was anoverlap between the period of her employment by theUnited Nations and that for which the claim was beingmade. The United Nations informed the United StatesDepartment of Labor that, though it would not grant ac-cess to United Nations files or permit the production anddelivery of the entire personnel file, it would be preparedin the circumstances to produce its record of the employ-ment of the person concerned, together with a briefqualified testimony necessary to explain it.

24. More recently, according to reports from theUnited Nations, the specialized agencies and IAEA,there has been no controversy regarding recognition ofthe inviolability of the archives and documents of theUnited Nations, the specialized agencies and IAEA.However, IMF, whose staff members on mission carryan IMF briefcase for papers and documents, notes thaton a few occasions customs officials have insisted onsearching the briefcase even when informed of the invio-lability of the organization's archives, and that docu-

14 Judgement of 17 March 1953 of the District Court of the Districtof Columbia (Federal Supplement, vol. Ill, 1953, p. 223).

15 Keeney v. United States, judgement of 26 August 1954 of theCourt of Appeals of the District of Columbia (Federal Reporter,2nd series, vol. 218, 1955, pp. 843-844).

16 Ibid., p. 845.17 See document (A/CN.4/L.118 and Add.l and 2 (footnote 13

above), p. 239, para. 136.

ments, including codes, have been examined. In no case,however, have documents been confiscated. IMF has, ofcourse, protested against these actions, and assuranceshave been received that such incidents would henceforthbe avoided. Similarly, there have been some incidentsreported of interference with IMF documents sent by pri-vate courier.18

25. In addition to the general conventions on the privi-leges and immunities of the United Nations and thespecialized agencies, the headquarters agreements con-tain express provisions on the inviolability of archives.Such provisions differ little in their wording; in sub-stance, they set out the principle of the absolute inviolab-ility of archives more or less broadly, depending on thecase. To be noted in this connection, among others, are:the Articles of Agreement of IMF (art. IX, sect. 5); theAgreement between Switzerland and WHO (art. 8); theAgreement on Privileges and Immunities of OAS(art. 4); the General Agreement on Privileges and Im-munities of the Council of Europe (art. 5); the Conven-tion on the Privileges and Immunities of the League ofArab States (art. 4); the Agreement between UNESCOand France (art. 14, para. 2); the Agreement betweenWMO and Switzerland (art. 8); the Agreement betweenIAEA and Austria (art. VIII, sect. 21); and the Agree-ment establishing IDB (art. XI, sect. 5).

26. The question of the inviolability of the archives ofan international organization has two aspects. First, forpractical reasons, the archives of the organization mustbe open to its officials, who are bound by the obligationof professional secrecy. This aspect, which concerns theinternal affairs of the organization, is regulated by theorganization itself and is covered by its internal regula-tions. Through appropriate legal mechanisms, interna-tional organizations determine the way in which their ar-chives are to be used and the persons who are authorizedto use them, and regulate the arrangements for their use.It would not be appropriate for the Commission to dis-cuss or examine this aspect of the question.

27. The second aspect involves the inviolability of thearchives of international organizations in relation to theexterior. It is this second aspect which the Commissionis required to study in conformity with the mandategiven to it by the General Assembly. The inviolability ofthe archives of international organizations in relation tothe exterior is, as we have seen, absolute, just as in thecase of States. It can be said that in the case of interna-tional organizations such inviolability should be evenstricter, since its purpose is to protect not only the secretsof the international organizations themselves but alsothose of their member States.

28. In accordance with doctrine and State practice, na-tional authorities must refrain from any kind of adminis-trative or jurisdictional coercion and are obligated toprotect the archives of international organizationsagainst any external interference.

18 See the supplementary study prepared by the Secretariat in 1985on the practice of the United Nations, the specialized agencies andIAEA concerning their status, privileges and immunities (Year-book... 1985, vol. II (Part One). Addendum, p. 191, documentA/CN.4/L.383 and Add. 1-3), para. 69.


29. Even when an international organization waivesimmunity from jurisdiction, it cannot be obliged to com-ply with national procedural rules and, in particular, withthe obligation to produce documents requested by thecourts. We know that waiver of immunity from jurisdic-tion does not entail a simultaneous waiver of immunityfrom measures of execution. There is no doubt that anorder for discovery of documents constitutes coercion,and the privilege in these circumstances is just as broadas that accorded to foreign States.19

30. Jenks has expressed a categorical opinion on thispoint, stating that, as regards inviolability of archives,international organizations enjoy a fuller measure of im-munity than the Government in English law. He ob-serves firmly: "No order for discovery of documents canbe made against an international body corporate which isentitled to inviolability of archives . . .".2(7

31. In the course of an inquiry concerning United Na-tions staff members of United States nationality, theUnited States Government called upon them to producecertain documents belonging to the archives of theOrganization, declared inviolable by United States lawitself. The Secretary-General of the United Nations op-posed such a step because he considered that it violatedthe Organization's archives. The United States grandjury did not object to the position adopted by theSecretary-General. Nevertheless, on 22 October 1952 theSecretary-General set up an international commission ofjurists which was requested to advise him on five spe-cific questions, including the following:

(iv) In the course of inquiries by agencies of the United StatesGovernment, should the Secretary-General make available archives ofthe Organization or authorize staff members to respond to questionsinvolving confidential information relating to official acts?"

32. In its opinion of 29 November 1952 the Commis-sion of Jurists replied in the following terms:

All the relevant documents declare the archives of the United Na-tions to be inviolable. In our opinion, the Secretary-General shouldnever waive this privilege. Indeed, we doubt whether he has anypower to do so. . . . 2 2

33. The United Nations interprets strictly the principleof the absolute inviolability of its archives, which is,moreover, in accordance with the relevant United Stateslegislation, the International Organizations ImmunitiesAct, which states: "The archives of internationalorganizations shall be inviolable".23

34. Protection by States of the inviolability of the ar-chives of an international organization against any inter-ference by persons from outside the organization in-volves preventing such persons from taking possessionof the archives or obtaining information about their con-

19 See J. Duffar, Contribution a I'etude des privileges el immunitesdes organisations internationales (Paris, Librairie generale de droit etde jurisprudence, 1982), p. 169.

2 0 C. W. Jenks, The Proper Law of International Organisations(London, Stevens, 1962), pp. 234-235.

21 See the report of the Secretary-General on personnel policy, of 30January 1953 {Official Records of the General Assembly, Seventh Ses-sion, Annexes, agenda item 75 , document A/2364), para. 62.

2 2 Ibid., annex III, sect. VII.2 3 United States Code, 1988 Edition, vol. 9, title 22, sect. 288a, (c).

tents. The State is therefore under an obligation to re-frain and protect. This is the rule in diplomatic law,24 andit applies also in the case of international organizations.

35. The Vienna Convention on Diplomatic Relationsexpressly provides in article 45 for the protection of thearchives of diplomatic missions in case of emergency:

Article 45

If diplomatic relations are broken off between two States, or if amission is permanently or temporarily recalled:

(a) The receiving State must, even in case of armed conflict, re-spect and protect the premises of the mission, together with its prop-erty and archives;

36. The same Convention does not refer specifically inarticle 24 to the duty of the receiving State to protect thearchives against any interference by third parties. As Ca-hier states, the wording of this article is defective be-cause "this inviolability would obviously be illusory ifthe receiving State were not obliged to protect the ar-chives".25

37. Nevertheless, despite this omission in the ViennaConvention, it is understood, as noted above (para. 12),that the customary rule according to which a State isobliged to protect the archives of a diplomatic missionremains in force. This can clearly be deduced from theCommission's commentary to article 22, on inviolabilityof the archives, adopted in 1958.26

38. This absolute inviolability of archives was demon-strated in practice in connection with the closing of theGerman Legation at Bern in 1945. The premises wereplaced under the protection of the Political Departmentof the Swiss Confederation, and the archives weresealed."27

39. The customary rule was also applied in the case ofthe Romanian Legation at Bern which was attacked by agroup of individuals who occupied the Legation for 38hours on 15 and 16 February 1951. They read a numberof documents forming part of the Legation archives anddestroyed them. The Swiss Government was criticizedfor not having taken appropriate steps to restore the in-violability of the archives immediately. In fact, the Swissauthorities preferred to negotiate with the attackers so asnot to endanger human lives by storming the Legationpremises.28 The Swiss authorities were nevertheless un-der the obligation not only to protect the premises butalso to prevent violation of the secrecy of the archives.

40. In another case, on the other hand, Switzerlandcomplied fully with its obligations. In 1958, when twoarmed Hungarian refugees entered the Hungarian Lega-tion at Bern in order to seize documents, the police,alerted and given permission by the head of the mission,entered the premises and arrested the perpetrators.29

24 Cahier, op. cit., pp. 216 et seq.25 Ibid., p. 210.26 See footnote 7 above.27 Cahier, op. cit., p. 210.28 Ibid., pp. 217-218.29 Ibid., p. 218, footnote 76.


41. There is no doubt that the principle is equally validin the case of international organizations. It is clear thatwhen the archives are kept on the premises occupied byan international organization, protection of the premisesentails protection of the inviolability of the archives. Butwhen the archives are carried out of the premises, it mustbe acknowledged that the host State is obliged, shouldthe circumstances so require, to provide the protectionnecessary to preserve the secrecy of their contents or toallow the organization itself to do so.

42. The States members of an international organi-zation should therefore refrain from exercising any ad-ministrative coercion whatsoever against the individualsor means of transport that may be carrying archives.They should not invoke the prerogatives of the judicialauthorities in order to infringe the secrecy of the ar-chives. They also have the obligation to protect the ar-chives of international organizations against interferenceby third parties.

43. In conclusion, international instruments, whether inthe form of treaties or headquarters agreements, andeven unilateral declarations or acts (for example, the In-ternational Organizations Immunities Act of the UnitedStates), like doctrine and State practice, fully support theprinciple of the inviolability of the archives of interna-tional organizations. The right to a private life, to pri-vacy, in other words to secrecy, is recognized to be a ba-sic element guaranteeing the freedom of action and func-tional efficiency of international organizations. Respectfor privacy and the preservation of secrecy constitute the

very basis of the independence of internationalorganizations, to which they must be entitled if they areto fulfil properly the purposes for which they were estab-lished.

B. Draft article 12

44. In accordance with the foregoing, the Special Rap-porteur proposes the following draft article:

Article 12

1. The archives of international organizationsand, in general, all documents belonging to or held bythem shall be inviolable wherever they are located.

2. Archives of international organizations shallbe understood to mean all papers, documents, corre-spondence, books, films, tape recordings, flies andregisters of the international organization, togetherwith ciphers, codes, and the filing cabinets and furni-ture intended to protect and conserve them.

45. Paragraph 2 of the article could be included in thesection on definition of terms at the beginning of thedraft articles. The Special Rapporteur has no preferencein that regard but feels that it might perhaps make thetext clearer if the definition of archives were included inthe body of the draft article itself, thus obviating theneed to refer to another draft article, r,

III. Publications and communications facilities

A. Preliminary observations

46. In the case of international organizations, freedomof communication cannot be dissociated from freedomof publication. The effectiveness of any internationalorganization depends largely on the means of expressionand communication available to it, on the exchange anddissemination of ideas, or, in other words, on its capabil-ity to express itself freely. International organizationsmust have the most extensive communications facilitiesif they are to function properly: they must be able tocommunicate freely with member States or otherorganizations, and be able to propagate and disseminateideas and the results of the work entrusted to them. Inshort, they must enjoy freedom of publication and com-munication in order to protect the right to freedom of ex-pression. As Duffar has observed, quoting article 11 ofthe 1789 Declaration of the Rights of Man, "the unre-strained communication of thoughts or opinions is one ofthe most precious rights of man",30 a right also set forthin article 19 of the Universal Declaration of HumanRights,31 article 18 of the International Covenant on

,32

30 Duffar, op. cit., p. 196.31 General Assembly resolution 217 A (III).

Civil and Political Rights and article 10 of the Euro-pean Convention on Human Rights.33

47. If this freedom has been recognized in the case ofindividuals, there is all the more reason why it should berecognized in the case of international organizations,which are called upon to act, inform and consequentlycommunicate on a much greater scale. This observationapplies in particular to international organizations of anoperational character, as the basic condition for all theiractivities is freedom of communication and information.

B. Publications

1. GENERAL CONSIDERATIONS

48. Publications constitute the chief—indeed, it mightbe said, the most basic—form of expression for interna-tional organizations. Consequently, the scope of the term"publications", as employed by international organi-zations both in the legal documents and in practice, is

32 United Nations, Treaty Series, vol. 999, p. 171.33 Convention for the Protection of Human Rights and Fundamental

Freedoms (ibid., vol. 213, p. 221).


much broader than is usual in domestic law. The scopeof the term varies, of course, from document to docu-ment. One of the broadest uses is found, for example, inthe wording contained in the Agreement between Austriaand IAEA, which provides in article VI, section 15 (a):

(a) All official communications directed to the IAEA, or to any ofits officials at the headquarters seat, and all outward official communi-cations of the IAEA, by whatever means or in whatever form trans-mitted, shall be immune from censorship and from any other form ofinterception or interference with their privacy. Such immunity shallextend, without limitation by reason of this enumeration, to publica-tions, still and moving pictures, films and sound recordings.

That provision clearly establishes the indivisibility thatexists in the protection afforded to privacy irrespectiveof the vehicle used to communicate thoughts, whethercorrespondence, publications, moving pictures, sound re-cordings or other medium.34

49. The concept of publications is stated in a similar,albeit less sweeping, manner in other international in-struments. Thus, for example, in the Agreement be-tween ICAO and Mexico, exemption from prohibitionsand restrictions is granted in respect of the "import orexport of its publications, photographs, films and phono-graph records" (art. Ill, sect. 6 (c)). In the Agreementbetween UNESCO and France, the list of exempteditems includes "publications, cinematograph films, pho-tographic slides and documents which the Organizationmay import or publish in the course of its official activ-ities" (art. 15, para. 2 (&)). Similar provisions are to befound in the Agreement between Italy and FAO (art. VI,sect. 13), the Agreement between Egypt and FAO (art.V, sect. 13 (&)), the Agreement between Thailand andFAO (art. VIII, sect. 15 (c)) and the Agreement on Privi-leges and Immunities of OAS (art. 5 (c)).

2. PRACTICE

50. In accordance with the General Convention, theUnited Nations is "exempt from customs duties and pro-hibitions and restrictions on imports and exports in re-spect of its publications" (art. II, sect. 7 (c)). Similarprovisions are contained in other agreements, for exam-ple the Interim Arrangement between the United Nationsand Switzerland (art. II, sect. 5 {e)), the Agreement be-tween the United Nations and Chile relating to the head-quarters of ECLA (art. IV, sect. 10 (c)) and the Agree-ment between the United Nations and Thailand relatingto the headquarters of ECAFE (art. IV, sect. 8 (c)).

51. As regards the specialized agencies, the Conven-tion on the Privileges and Immunities of the SpecializedAgencies grants to the agencies exemption from dutiesand prohibitions and restrictions on imports and exportsin respect of their publications (art. Ill, sect. 9 (c)).

52. The term "publications" has been widely inter-preted to encompass not only printed matter but alsofilms, records, recorded radio programmes and audiotapes, as well as books, periodicals and other printedmatter published by the organization in question. Noteshould be taken of the statement made by the LegalCounsel of the United Nations to the Fifth Committee of

the General Assembly at its seventeenth session, inwhich he referred to a problem that had arisen regardingthe interpretation of the term "official use". The LegalCounsel stated:

Now, if the United Nations sent a film or recording produced by itas a part of its public information operations to a distributing agent fordistribution in a Member State, is the film so imported into the terri-tory of that Member State for the "official use" of the United Na-tions? The Secretariat took the affirmative view and the Member con-cerned, I am glad to report, graciously agreed.35

53. Furthermore, in an internal memorandum preparedby the Office of Legal Affairs in 1952 it was stated, inconnection with the General Convention:

. . . the term "official use" in section 7 (b) must be regarded as com-prehending the distribution of United Nations films within MemberStates not only by the United Nations itself but through the variousdistributors which contract with the United Nations under the filmrental agreements, so long as the United Nations is carrying out an of-ficial purpose in effecting the distribution.36

54. We can therefore see from the different interpreta-tions given to the term "publications" by the various in-ternational organizations that the term covers a ratherwide gamut of means of information and dissemination.It encompasses not only publications stricto sensu butalso a range of means of information, including motionpictures. The United Nations and the specializedagencies have until now claimed as of right a regime ofcomplete freedom—though with certain specificexceptions—in all matters relating to the publications ofinternational organizations.

55. A possible way of establishing more direct meansof control by States is through censorship or governmentlicence. In 1962, the United States of America sought torequire the United Nations to obtain a licence to exportpublic information materials to certain States. Followingan exchange of correspondence, the United States ac-knowledged that the United Nations was exempt fromthat obligation, since such a restriction might cripple itsinformation activities in the States in question. TheUnited Nations based its protest on the provisions of Ar-ticle 105 of the Charter and article II, section 7 (b), ofthe General Convention.737

56. A Member State requested the United Nations In-formation Centre situated in its territory to stop showingUnited Nations films until they had been cleared with theauthorities of the host State. The Secretariat wrote in1966 to the Permanent Mission of the State concerned,setting out the basis on which exemption from this re-quirement was claimed in the following words:

The United Nations is not in a position to submit its films to cen-sorship since this would be contrary to the Charter and to the Conven-tion on the Privileges and Immunities of the United Nations of whichyour country is a party. The position of the United Nations in this re-gard derives, in general terms, from Article 105 of the Charter andmore specifically from sections 3, 4 and 7 (c) of the Convention onthe Privileges and Immunities of the United Nations. x

3 4 Duffar, op. cit., p. 199.

3 5 See document A /CN.4 /L . I I8 and Add. I and 2 (footnote 13above), p. 250, para. 182.

3 6 Ibid., p. 2 5 1 , para. 193.3 7 Ibid., p. 250, para. 184.3 8 Ibid., p. 252, para. 199.


57. It may be noted that the Agreement between theUnited Nations and Chile relating to the headquarters ofECLA expressly provides that the freedom from censor-ship enjoyed in respect of ECLA correspondence andother communications is extended, "without limitationby reason of this enumeration, to printed matter, still andmoving pictures, films and sound recordings" (art. Ill,sect. 6). Similar provisions are contained in the Agree-ment between the United Nations and Ethiopia regardingthe headquarters of ECA (art. Ill, sect. 6 (a)) and theAgreement between the United Nations and Thailandrelating to the headquarters of ECAFE (art. V,sect. 13 (a)).

58. The information received since 1966 on the prac-tice of the United Nations, the specialized agencies andIAEA concerning their status, privileges and immun-ities39 indicates that, in practice, no serious problems re-lating to the recognition of the freedom of theorganizations mentioned with respect to their publica-tions have arisen. However, the United Nations hasnoted two cases that concern the interpretation of theterm "publications" and problems of distribution.

59. In one case, a new press law in a Member State re-quired that all periodical publications should carry a rec-ord of the name of the editor. In a memorandum dated16 January 1970 addressed to the Office of Public Infor-mation, the United Nations Office of Legal Affairs gavethe following opinion:

The purpose of the provision referred to above of the press law inquestion is obviously to identify the author of any periodical publica-tion so as to hold him responsible under the law of the Member Stateconcerned. In the distribution of United Nations publications in thatState, the Director of the United Nations Information Centre would beperforming a United Nations function in his capacity as a United Na-tions official. He cannot be held accountable to the Government con-cerned or, for that matter, to any other authority external to the UnitedNations, in virtue of Article 105 of the Charter and section 18 (a) ofthe Convention on the Privileges and Immunities of the United Na-tions. The said provision of the law in question obviously has no ap-plication with respect to United Nations publications, including thoseissued by the Information Centre.

Accordingly, the Director of the Centre should take the necessarysteps to request recognition of the exemption from the application ofthe law in question.40

60. The other case refers to the censorship of UnitedNations films under the censorship laws of a MemberState. In a memorandum to the Office of Public Informa-tion dated 7 January 1970,41 the Office of Legal Affairsaddressed this question, stating inter alia:

The United Nations is not in a position to submit its films to cen-sorship, since it would be contrary to the Charter and to the Conven-tion on the Privileges and Immunities of the United Nations to whichthe Member State concerned acceded without reservations. The posi-tion of the United Nations in this regard derives, in general terms,from Article 105 of the Charter and, more specifically, from sections3, 4 and 7 (c) of the Convention on the Privileges and Immunities ofthe United Nations.. . .

61. The legal provisions cited by the Office of LegalAffairs refer to the inviolability of the premises of theUnited Nations; the immunity of the property and assetsof the United Nations, wherever located and by whomso-

ever held, from search, requisition, confiscation, expro-priation and any other form of interference, whether byexecutive, administrative, judicial or legislative action;the inviolability of the documents belonging to it or heldby it; and, lastly, the exemption accorded to the UnitedNations from prohibitions and restrictions on importsand exports in respect of its publications.

62. As to the distinction between United Nations filmsintended "for screening in commercial cinemas" andfilms "shown at public or private group-screenings",the Office of Legal Affairs rejects the notion that anysuch distinction could be made in relation to the GeneralConvention. According to the Office of Legal Affairs,the establishment of an information centre in the terri-tory of a Member State is effected in accordance withresolutions of the General Assembly, under which bothMember States and the Secretary-General are to furtherthe public information work of the United Nations, asspelt out in General Assembly resolutions 13 (I), 595(VI) and 1405 (XIV).

63. According to paragraph 8 of the "Basic PrinciplesUnderlying the Public Information Activities of theUnited Nations"42 approved by the General Assembly inits resolution 595 (VI), the United Nations Departmentof Public Information should

promote and where necessary participate in the production and distri-bution of documentary films, film strips, posters and other graphic ex-hibits on the work of the United Nations.

Concerning the mode of distribution, paragraph 10 of theBasic Principles states:

10. Free distribution of materials is necessary in the public infor-mation activities of the United Nations. The Department should, how-ever, as demands increase and whenever it is desirable and possible,actively encourage the sale of its materials. Where appropriate, itshould seek to finance production by means of revenue-producing andself-liquidating projects.

The Office of Legal Affairs concludes its memorandumof 7 January 1970 by stating:

It is thus a long-established principle that distribution of United Na-tions public information material may take place through commercialchannels... . there is no foundation for distinguishing between variousforms of distribution as long as the activities are performed within thescope of the above-mentioned General Assembly resolutions.

64. In practice, then, the term "publications" has beeninterpreted to cover films, photographs and sound re-cordings (produced as part of the public information pro-gramme of an international organization and exported orimported for exhibition or retransmission), as well asbooks, periodicals and other printed matter. While nodisputes have arisen concerning the scope of the term"publications", some specialized agencies, such asFAO, IBRD and IDA, have encountered difficulties inapplying the relevant provisions, and also with regard tothe 1949 Agreement on the free circulation of educa-tional materials.43 For instance, some countries levy im-port duties on the publications and documents of interna-tional organizations, and the distribution of books, films

3 9 See document A/CN.4/L.383 and Add. 1-3 (footnote 18 above).4 0 Ibid., p. 167, para. 39.4 1 Ibid., para. 40.

4 2 See the annex to the report of Sub-Committee 8 of the Fifth Com-mittee on Public Information (Official Records of the General Assem-bly, Sixth Session, Annexes, agenda item 4 1 , document A/C.5/L. 172).

4 3 Agreement for facilitating the international circulation of visualand auditory materials of an educational, scientific and cultural charac-ter (United Nations, Treaty Series, vol. 197, p. 3).


and microfiches is sometimes hindered by restrictions orlong delays in clearing them through customs.

65. The subcommittee on privileges and immunities ofinternational organizations of the European Committeeon Legal Cooperation noted in its report that agreementson the privileges and immunities of international organi-zations usually do not contain express provisions on thedissemination of publications once they have been im-ported, but pointed out that article 10 of the Protocol onthe Privileges and Immunities of the European SpaceVehicle Launcher Development Organization specifi-cally provides that publications must be circulated with-out restriction. While agreeing that States should facili-tate distribution of the publications of an organization ofwhich they are members, it took the view that memberStates should reserve the right to take the necessary stepsto protect public order.44

C. Communications

1. DEFINITION AND LEGAL TEXTS

66. The Convention on the Privileges and Immunitiesof the Specialized Agencies provides in article IV, sec-tion 11:

Each specialized agency shall enjoy, in the territory of each Stateparty to this Convention in respect of that agency, for its official com-munications, treatment not less favourable than that accorded by theGovernment of such State to any other Government, including the lat-ter's diplomatic mission, in the matter of priorities, rates and taxes onmails, cables, telegrams, radiograms, telephotos, telephone and othercommunications, and press rates for information to the press and ra-dio.

67. This provision is similar to the one in the GeneralConvention, which states in article III, section 9:

The United Nations shall enjoy in the territory of each Member forits official communications treatment not less favourable than that ac-corded by the Government of that Member to any other Governmentincluding its diplomatic mission in the matter of priorities, rates andtaxes on mails, cables, telegrams, radiograms, telephotos, telephoneand other communication; and press rates for information to the pressand radio. No censorship shall be applied to the official correspond-ence and other official communications of the United Nations.

68. Similar provisions can be found in other interna-tional agreements, for instance in article III of the Agree-ment between the United Nations and Chile relating toECLA; in Article V, sections 11 and 13, of the Agree-ment between the United Nations and Thailand relatingto ECAFE; in article III, sections 5 and 6, of the Agree-ment between the United Nations and Ethiopia relatingto ECA; and in article III, section 7, of the Interim Ar-rangement between the United Nations and Switzerland,to which the words "in conformity with the InternationalConvention on Telecommunications" were added at theend of the first sentence.

69. The General Agreement on Privileges and Immun-ities of the Council of Europe is more specific; it pro-vides in article 8 as follows:

Article 8

The Committee of Ministers and the Secretary-General shall enjoyin the territory of each Member, for their official communications,treatment at least as favourable as that accorded by that Member to thediplomatic missions of any other Government.

No censorship shall be applied to the official correspondence andother official communications of the Committee of Ministers and ofthe Secretariat.

This article refers specifically to diplomatic treatmentand is clearly intended to protect freedom of communi-cation effectively against any attempt by a State to ob-struct or impede the Council's mission if it considersthat mission potentially detrimental to its own interests.Reference to this provision is justified by the similarityof situations. Like international organizations, diplo-matic missions conduct their activities in a territorywhich is not their own. Moreover, the international na-ture of their functions requires, as we have seen, that se-crecy be respected.45

70. The inviolability of the communications of interna-tional organizations would thus seem to be defined byreference to the law of diplomatic missions. There couldbe no more favourable system than that which Statesagree to apply to each other. Such a system is providedfor in the Vienna Convention on Diplomatic Relations,which states in article 27, paragraph 1:

1. The receiving State shall permit and protect free communica-tion on the part of the mission for all official purposes.. . .

71. It may also be noted that the internal law of mostWestern countries confirms the inviolability of commu-nications between persons. By extension, internationallaw might be said to recognize that such inviolability isguaranteed in the case of international organizations.

72. The term "communications" encompasses allmeans of transmitting ideas: correspondence, telegraph,telephone and radio. Most legal systems guarantee theinviolability of communications. Thus, for example, arti-cle 63 of the Constitution of Venezuela states: "Corre-spondence in all its forms is inviolable. Letters, tele-grams, private papers and any other means of corre-spondence may not be seized except by judicialauthority". It nevertheless establishes a limitation whichis not applicable to international organizations. A similarprovision is to be found in article 25 of the Constitutionof Mexico; in articles 10, 18 and 44 of the Basic Law ofthe Federal Republic of Germany; and in article 36,paragraph 4, of the Constitution of Switzerland.

73. Although the principle is formulated in absoluteterms, de jure and de facto derogations from it, such asthat noted above in the case of the Venezuelan Constitu-tion, exist in all countries. However, it would seem thatsuch derogations do not apply to international organi-zations.

74. The inviolability of the communications of diplo-matic missions implies on the part of the receiving Stateboth abstention and a positive obligation to protect free-dom of communication; the communications of interna-tional organizations are entitled to the same treatment.

44 Council of Europe, Privileges and Immunities.. ., explanatory re-port (see footnote 4 above), para. 73. 45 See Duffar, op. cit., p. 197.


Furthermore, the State must refrain from using againstthem any of the means available to it in internal law. Itsresponsibility may be entailed if it does not protect thecommunications of international organizations.

75. The protection provided by the State may be director indirect, depending on the arrangements involved.46

The protection is direct when the State conducts or oper-ates the means of communication itself. It would seemthat in such cases the obligation of the State consists indoing everything possible to fulfil its undertakings and isnot, therefore, an obligation of result. In order to avoidany controversy, various headquarters agreements sim-ply require the State to enter into an obligation of thiskind rather than an obligation of result. For example, theAgreement between the United Nations and the UnitedStates of America regarding the Headquarters of theUnited Nations states in article VII, section 17 (a):

. . . In case of any interruption or threatened interruption of any suchservices, the appropriate American authorities will consider the needsof the United Nations as being of equal importance with the similarneeds of essential agencies of the Government of the United States,and will take steps accordingly to ensure that the work of the UnitedNations is not prejudiced.

76. The obligation to guarantee absolute inviolabilityis indirect when the communications are not carried outby the services of the State itself. The State must then in-tervene to see that non-governmental institutions are en-suring the fulfilment of its international obligations. Theresponsibility of the host State is not diminished in inter-national law by the fact that the communication serviceinvolved is a private one. In practice, it seems to be con-sidered that the State has fulfilled its obligations when itproves that it has sought with due diligence to protect thecommunications of the organization.

77. According to the studies prepared by the Secretar-iat in 1967 and 1985 on the practice of the United Na-tions, the specialized agencies and IAEA concerningtheir status, privileges and immunities,47 the provisionsof section 9 of the General Convention have in generalbeen well observed. In three Latin American countries,Bolivia, El Salvador and Mexico, the United Nations hasreceived the benefit of special postage rates or franchisein respect of official mail posted in those countries. InBolivia the United Nations Information Centre was al-lowed free postage within the country. In Mexico thematter was governed by an official decree, published inthe Diario Oficial No. 19 of 24 September 1963,whereby the Mexican Government granted postal andtelegraphic franchise to the organizations participating inthe Technical Assistance Board programme for the dura-tion of the Basic Agreement on Technical Assistance be-tween Mexico and the United Nations signed on 23 July1963. In El Salvador a similar franking privilege wasgiven in 1961, in connection with which mention wasmade of the Convention of the Postal Union of theAmericas and Spain, under which members of the diplo-matic corps in El Salvador of the countries of the Unionwere entitled to that privilege.48

78. Following the adoption in 1966 of a convention be-tween the Latin American States, Canada and Spainwhich granted special franking privileges to the corre-spondence of diplomatic missions of the members of thePostal Union of the Americas and Spain, the Secretary-General, in a letter of 24 August 1971 to the PermanentRepresentatives of those countries to the United Nations,claimed those privileges for the United Nations under ar-ticle III, section 9, of the General Convention.49

79. There is a reason for the addition of the words "inconformity with the International Convention on Tele-communications" at the end of the first sentence of arti-cle III, section 7, of the Interim Arrangement betweenthe United Nations and Switzerland. In effect, the Inter-national Telecommunication Convention adopted at At-lantic City in 1947 provides that telegrams sent and tele-phone calls made by the United Nations should betreated as though sent or made by a Government. The as-similation to telegrams and telephone calls sent or madeby a Government was made in the following terms:

Article 36. Priority of Government telegramsand telephone calls

Subject to the provisions of Article 45, Government telegrams shallenjoy priority over other telegrams when priority is requested for themby the sender. Government telephone calls may also be accorded pri-ority, upon specific request and to the extent practicable, over othertelephone calls.

80. Article 45 of that Convention gives "absolute pri-ority" to "distress calls and messages". Furthermore,annex 2 of the Convention, in defining the terms used,includes the following clause:

Government Telegrams and Government Telephone Calls: Theseare telegrams or telephone calls originating with any of the authoritiesspecified below:

(/) the Secretary-General of the United Nations and the Heads ofthe subsidiary organs of the United Nations:

81. In 1949 the Administrative Council of ITUadopted resolution No. 142,5() in which it requested theSecretary-General of ITU inter alia. . . to keep up to date the list of the subsidiary organs of the UnitedNations and to forward to the Members and Associate Members of theUnion a copy of such list and to advise them of any modificationstherein;

82. Difficulties arose, however, over the question ofdetermining which were the subsidiary organs of theUnited Nations. Faced with a refusal to grant govern-mental treatment to a particular United Nations informa-tion centre, the United Nations wrote to ITU in 1951,pointing out that information centres formed part of theSecretariat and were not subsidiary organs; telegramsand telephone calls originating with them were therefore

4 6 Ibid., p. 210.4 7 See footnotes 13 and 18 above.4 8 Document A/CN.4 /L . I18 and Add. l and 2 (see footnote 13

above), p. 259, paras. 217-219.

4 9 See document A/CN.4/L.383 and Add. 1-3 (footnote 18 above),p. 169, para. 46.

'" 'Resolution on the application of article IV of the Convention onthe Privileges and Immunities of the Specialized Agencies ( "Reso lu-tions of the Administrative Council of the International Telecommuni-cation Union, 4th session, Geneva, August-September 1949") (mim.).


entitled to governmental treatment, as having been sentor made on behalf of the Secretary-General, withoutneeding to be specially listed. In the International Tele-communication Convention adopted at Buenos Aires, thedefinition quoted above (para. 80) was amended and thecorresponding clause, appearing in annex 3 of the Con-vention, read as follows:

Government Telegrams and Government Telephone Calls: Theseare telegrams or telephone calls originating with any of the authoritiesspecified below:

the Secretary-General of the United Nations and the Heads of thesubsidiary organs of the United Nations;

83. In annex 3 of the International TelecommunicationConvention of 1959 adopted at Geneva this definitionwas changed again so as to refer to telegrams and tele-phone calls originating with "the Secretary-General ofthe United Nations; Heads of the principal organs of theUnited Nations".

84. Apart from this problem of definition, it can beconfirmed that United Nations telegrams and telephonecalls (unlike those of the specialized agencies) now re-ceive treatment at least as favourable as that granted tothe telegrams and telephone calls of Governments.51

85. As regards priority (the only aspect covered ex-pressly by the International Telecommunication Conven-tion), it may be noted that, under the provisions of chap-ter XVII, article 62, paragraph 7, of the Telegraph Regu-lations, as revised at Geneva in 1958,52 a special priority,over and above that afforded to government telegrams, isgranted to telegrams relative to the application of theprovisions of Chapters VI, VII and VIII of the Charter ofthe United Nations sent in an emergency by the Presi-dent of the Security Council, the President of the Gen-eral Assembly, the Secretary-General and certain otherofficials. However, in addition to receiving priority forits telecommunications on terms at least as favourable asthose afforded to Governments, the United Nations hasalso been granted the benefit of the same rates as are en-joyed by Governments in respect of their intercommuni-cations.

86. No cases have been reported in which the nationalauthorities have applied censorship to official corres-pondence and other communications of the United Na-tions.

87. According to the two studies by the Secretariat onthe practice of the United Nations, the specialized agen-cies and IAEA concerning their status, privileges andimmunities,53 there has been faithful compliance with thetreatment accorded to the specialized agencies under ar-ticle IV, section 11, of the Convention on the Privilegesand Immunities of the Specialized Agencies, with oneimportant exception. The exception concerns privileges

in respect of telecommunications, since, under the vari-ous international telecommunication conventions, not allthe specialized agencies have enjoyed treatment in re-spect of priorities, rates and taxes not less favourablethan that accorded to Governments.

88. The International Telecommunication Conventionadopted at Atlantic City, at approximately the same timeas the Convention on the Privileges and Immunities ofthe Specialized Agencies was adopted by the GeneralAssembly, provides that priority shall be given to UnitedNations telegrams and telephone calls, but does not doso for those of the specialized agencies. Since the Atlan-tic City Convention did not accord governmental treat-ment for communications of the specialized agencies,the Administrative Council of ITU, at its third session, in1948, adopted a resolution inviting the Secretary-General and the member States of ITU to interpret arti-cle IV of the Convention on the Privileges and Immun-ities of the Specialized Agencies in the light of the At-lantic City Convention.54 There followed a series of ex-changes between the Secretaries-General of the UnitedNations and of ITU. By a letter dated 30 August 1948,the Secretary-General of the United Nations informedthe Secretary-General of ITU that the Convention on thePrivileges and Immunities of the Specialized Agencieshad become applicable to ICAO and WHO, and ex-pressed the opinion that States parties to the Conventionwould have the duty to apply the provisions of article IV,section 11, to those agencies.55

89. Despite lengthy correspondence between the par-ties concerned and negotiations and discussions in ITU,the latter has systematically refused to include thespecialized agencies among those empowered to sendgovernment telegrams or to place government telephonecalls. Indeed, it has urged the United Nations to amendarticle IV, section 11, of the Convention on the Privi-leges and Immunities of the Specialized Agencies in or-der to resolve the problem. As of 1 June 1985, eightGovernments had declared that they were unable to com-ply fully with the provisions of article IV, section 11, un-til such time as all other Governments had decided to co-operate in granting such treatment to the agencies.56

Thus, except in certain extreme cases (e.g., urgent epide-miological telegrams of WHO, under article 61 of theTelegraph Regulations,57 or where strikes prevent thedispatch of ordinary cables, so that the procedure envis-aged in resolution No. 27 of the Buenos Aires Confer-ence58 comes into play), the specialized agencies havenot enjoyed the privilege of priority for their telecommu-nications, nor the advantages of government rates.

51 See document A/CN.4/L.118 and Add. l and 2 (footnote 13above), p. 259, para. 222.

5 2 ITU, Telegraph Regulations (Geneva Revision, 1958), annexed tothe International Telecommunication Convention (Buenos Aires,1952) (Geneva, 1959), p. 88.

53 See footnotes 13 and 18 above.

5 4 Resolution No. 36 concerning privileges and immunities of spe-cialized agencies ("Resolut ions of the Administrative Council of theInternational Telecommunicat ion Union, 3rd session, Geneva,September-October 1948") (mim.).

5 5 See document A/CN.4/L.118 and Add. l and 2 (footnote 13above), p. 309, para. 77.

5 6 See United Nations, Multilateral Treaties Deposited with theSecretary-General: Status as at 31 December 1990 (Sales No.E.91.V.8), chap. III.2.

5 7 ITU, Telegraph Regulations, op. cit., p. 86.5 8 See ITU, International Telecommunication Convention, Buenos

Aires, 1952, p. 156.


90. In the case of international agencies of a financialnature—IBRD, IDA, IFC and IMF—the facilities to beaccorded to their communications are set forth in theirrespective constitutions in closely similar terms. Arti-cle VII, section 7, of the Articles of Agreement of IBRD,for example, provides: "The official communications ofthe Bank shall be accorded by each member the sametreatment that it accords to the official communicationsof other members."

91. Except for a dispute that arose in 1949 between theUnited States of America on the one hand and IBRD andIMF on the other concerning a problem of interpretation,which was solved in favour of the two agencies, the rightof the financial agencies mentioned in the precedingparagraph, whose constitutions contain the same provi-sions, to enjoy the same treatment as that granted toGovernments in respect of telecommunications has notbeen challenged.59

92. Lastly, it may be noted that in article VI, section13, of the Agreement between IAEA and Austria and inarticle IV, section 10, of the Agreement on the privilegesand immunities of IAEA, communications facilities aregranted to IAEA in the territory of each State party onthe same terms as those enjoyed by Governments only tothe extent that such action is "compatible with any inter-national conventions, regulations and arrangements" towhich the State concerned is a party. A similar provisionis contained in article 10 of the Agreement betweenUNESCO and France.60

93. The scope of the obligations assumed by theUnited States towards the United Nations is muchvaguer. Article VII, section 17 (a), of the HeadquartersAgreement stipulates that "the headquarters district shallbe supplied on equitable terms with the necessary publicservices, including . . . post, telephone, telegraph, . . .".

2. MEANS OF COMMUNICATION

(a) General considerations

94. The means of communication to be made availableto international organizations cannot but be identical tothose employed by States or diplomatic missions. Ac-cordingly, in this case also, international organizationsare assimilated or equated to diplomatic missions so asto enable them to use the same means of communication.

95. The subcommittee of the European Committee onLegal Cooperation issued the following opinion on thismatter:

. . . Not all international organizations need to use couriers and to havespecial facilities for the use of sealed bags, codes and ciphers. In thecase of many organizations the use of ordinary mail and telecommuni-cations services should be sufficient....6I

96. The Special Rapporteur does not think that itshould be of major concern whether all internationalorganizations invariably use all of the exceptional meansof communication. The principle should be recognized,as it generally is, and applied in appropriate cases. Inthose cases where the functions of the organization donot warrant the application of the principle, theorganization should have the authority to waive it.

97. In any event, with the increasingly sophisticatedadvances in communications technology, using means ofradiotelephony and radiotelegraphy, such as telex andfacsimile transmission, the issue would become less andless important. Indeed, in future—as is the case to alarge extent, even today—the priority will simply be tohave the appropriate equipment installed, and to be ac-corded preferential tariffs and rates for the applicabletaxes and serv« ice charges.

98. As far as the relevant treaties are concerned, theVienna Convention on Diplomatic Relations stipulates,in article 27, that:

Article 27

1. The receiving State shall permit and protect free communica-tion on the part of the mission for all official purposes. In communi-cating with the Government and the other missions and consulates ofthe sending State, wherever situated, the mission may employ all ap-propriate means, including diplomatic couriers and messages in codeor cipher. However, the mission may install and use a wireless trans-mitter only with the consent of the receiving State.

2. The official correspondence of the mission shall be inviolable.Official correspondence means all correspondence relating to the mis-sion and its functions.

3. The diplomatic bag shall not be opened or detained.

99. The means of communication, as can be seen fromthe above article, comprise four main categories: codes,the diplomatic bag, couriers and telecommunications. Asit would be impossible to compile an exhaustive list, theCommission62 and the 1961 Vienna Conference on Dip-lomatic Intercourse and Immunities preferred to adopt acriterion of a general character.

100. For its part, the General Convention stipulates, inarticle III, section 10, that the United Nations "shallhave the right to use codes and to despatch and receiveits correspondence by courier or in bags, which shallhave the same immunities and privileges as diplomaticcouriers and bags", while the corresponding provisionof the Convention on the Privileges and Immunities ofthe Specialized Agencies (art. IV, sect. 12) reads:

No censorship shall be applied to the official correspondence andother official communications of the specialized agencies.

The specialized agencies shall have the right to use codes and todispatch and receive correspondence by courier or in sealed bags,which shall have the same immunities and privileges as diplomaticcouriers and bags.

59 See document A/CN.4/L.118 and Add.l and 2 (footnote 13above), p. 312, paras. 95-96.

60 Ibid., para. 97.61 Council of Europe, Privileges and Immunities ..., explanatory re-

port (footnote 4 above), para. 81.

62 See the discussion in the Commission, at its ninth and tenth ses-sions, on article 16 of the draft articles on diplomatic intercourse andimmunities (Yearbook... 1957, vol. I. pp. 74 et seq., 398th meeting,paras. 27-100; and Yearbook... 1958, vol. I, pp. 127 et seq., 455thmeeting, paras. 55-78).


Nothing in this section shall be construed to preclude the adoptionof appropriate security precautions to be determined by agreement be-tween a State party to this Convention and a specialized agency.

It should be noted that article III, section 10, of the Gen-eral Convention contains no reference to security precau-tions, and that the prohibition of censorship figures sepa-rately in article III, section 9, of that Convention.

101. As may be seen from the above texts, the privi-leges and immunities of international organizations aredefined in relation to those of diplomatic missions, asthey are specified in article 27 of the Vienna Conventionon Diplomatic Relations.

102. In addition to the aforementioned conventionsconcerning the privileges and immunities of the UnitedNations and the specialized agencies, there are manyother international instruments under which the treat-ment accorded to international organizations is assimi-lated to that accorded to diplomatic missions. Examplesinclude the Interim Arrangement between the United Na-tions and Switzerland (art. Ill, sects. 7 and 8); the Agree-ment between Switzerland and ILO (arts. 12 and 13) andthe Arrangement for the execution of that Agreement(arts. 5 and 6); the Agreement between Switzerland andWHO (arts. 12 and 13); the Agreement between Italyand FAO (art. VI, sects. 11, 12 and 13); the Agreementbetween ICAO and Canada (art. II, sects. 9 and 10); theAgreement between UNESCO and France (arts. 10 and11); and the Agreement between Switzerland and WMO(arts. 12 and 13).

(b) Codes

103. Whenever international organizations have beenallowed the benefit of diplomatic status, they have alsobeen fully authorized to use coded correspondence, with-out there being any need for a specific reference to suchauthorization. The United Nations enjoys that right byvirtue of article III, section 10, of the General Conven-tion. The Organization has of course used codes in caseswhere it considered this advisable, and no legal problemsappear to have arisen as a result.63

104. With respect to the specialized agencies, as notedabove, article IV, section 12, of the Convention on thePrivileges and Immunities of the Specialized Agenciesauthorizes them to use codes. The majority of thespecialized agencies, however, do not use them in theircorrespondence.64 In general, there has always been rec-ognition of the rights and the corresponding immunitiesand privileges referred to in the second paragraph of arti-cle IV, section 12, of the Convention on the Privilegesand Immunities of the Specialized Agencies, including''the right to use codes".

105. The draft convention on diplomatic privileges andimmunities drawn up by the Harvard Law School statesspecifically, in article 14 (Freedom of communications),that international organizations have the right to usecodes and ciphers:

1. A receiving State shall freely permit and protect official com-munications by whatever available means, including the employmentof messengers provided with passports ad hoc and the use of codesand cipher:

(e) Between a mission of the sending State and the agents of pub-lic international organizations, such as . . . 6 5

106. Accordingly, there seems to be no dispute as tothe application of that right and the granting of the privi-leges which international organizations are guaranteedon the basis of that right.

(c) The diplomatic bag

107. We have seen that the General Convention andthe Convention on the Privileges and Immunities of theSpecialized Agencies recognize that the United Nationsand those agencies are entitled to use the diplomatic bagfor their correspondence.

108. For its part, the Commission, with a view to clos-ing the loophole in the Vienna Convention on Diplo-matic Relations and the Vienna Convention on ConsularRelations, gave the following definition of "diplomaticbag" in article 3, paragraph 1 (2), of the draft articles onthe status of the diplomatic courier and the diplomaticbag not accompanied by diplomatic courier, and a simi-lar one in article II (b) of draft Optional Protocol Twothereto.66 The definition given in article 3 reads as fol-lows:

2. "diplomatic bag" means the packages containing official corre-spondence, and documents or articles intended exclusively for officialuse, whether accompanied by diplomatic courier or not, which areused for the official communications referred to in article 1 and whichbear visible external marks of their character as:

(a) a diplomatic bag within the meaning of the Vienna Conventionon Diplomatic Relations of 18 April 1961;

(b) a consular bag within the meaning of the Vienna Conventionon Consular Relations of 24 April 1963; or

(c) a bag of a permanent mission, a permanent observer mission, adelegation or an observer delegation within the meaning of the ViennaConvention on the Representation of States in Their Relations with In-ternational Organizations of a Universal Character of 14 March 1975.

109. It should be noted that no mention was made inarticle 3 of the diplomatic bag of international organi-zations. However, article 2, which deals with couriersand bags outside the scope of the draft articles, provides:

Article 2. Couriers and bags not within the scopeof the present articles

The fact that the present articles do not apply to couriers and bagsemployed for the official communications of special missions or inter-national organizations shall not affect:

(a) the legal status of such couriers and bags;

(b) the application to such couriers and bags of any rules set forthin the present articles which would be applicable under internationallaw independently of the present articles.

110. In the commentary to article 2, the Commissionexplained why it had ruled out the explicit inclusion of

63 See document A/CN.4/L.118 and Add.l and 2 (footnote 13above), p. 260, para. 224.

64 Ibid., p. 312, para. 99.

65 Harvard Law School, op. cit., pp. 21-22.66 See Yearbook... 1989, vol. II (Part Two), pp. 14 and 48 .


international organizations within the scope of the draftarticles, as defined in article 1. The commentary con-tained the following qualification, however:

. . . the fact that the articles deal only with couriers and bags of Statesdoes not preclude the possibility of substantial similarities between thelegal regime of couriers and bags of international organizations, par-ticularly those of a universal or broad regional character, and the legalregime of couriers and bags of States . . . . 6 7

111. Opinions were divided during the discussion ofthat question in the Commission68 and in the Sixth Com-mittee of the General Assembly.69 Some of the writtencomments and observations reflected support for the re-striction of the scope of the draft articles to the couriersand bags of States; but a large number of comments andobservations reflected support for the inclusion of thecouriers and bags of international organizations withinthe scope of the draft.

112. After listing a series of considerations, and in ac-cordance with the comprehensive and uniform criterionon which the draft articles were based, the Special Rap-porteur, Mr. Yankov, suggested in his eighth report thata new paragraph 2 should be inserted in article 1, to readas follows:

Article 1. Scope of the present articles

2. The present articles apply also to the couriers and bags em-ployed for the official communications of an internationalorganization with States or with other international organizations.70

113. After lengthy discussion, the Commission de-cided not to include the proposed new paragraph. Someargued in favour of its inclusion, others against. In thisparticular instance, as was pointed out in the Commis-sion, the repeated insistence by some members on differ-entiating between States and international organizationswas inopportune. International organizations are estab-lished by States and use diplomatic couriers and diplo-matic bags, as we have seen, without any serious objec-tion ever having been raised. Both the GeneralConvention and the Convention on the Privileges andImmunities of the Specialized Agencies, as well as manyother international instruments (headquarters agree-ments, technical assistance agreements and so forth)contain similar specific provisions on this subject.71

114. Here there appears to be a slight contradiction be-tween the decision taken by the Commission, and ap-proved by the Sixth Committee, to adopt a comprehen-sive and uniform criterion as a basis for the draft articles

67 Ibid., p. 15, para. (1) of the commentary.68 See Yearbook... 1988, vol. II (Part One), p. 125, document

A/CN.4/409 and Add. 1-5; and Yearbook... 1989, vol. II (Part One),p. 75, document A/CN.4/420.

69 See "Topical summary, prepared by the Secretariat, of the dis-cussion in the Sixth Committee on the report of the Commission dur-ing the forty-third session of the General Assembly" (A/CN.4/L.431),paras. 324-326.

70 See Yearbook... 1988, vol. II (Part One), p. 172, documentA/CN.4/417,para. 60.

71 See the summary of the discussion on this question at the fortiethsession of the Commission in Yearbook... 1988, vol. II (Part Two),pp. 76-77, paras. 306-309.

(harmonization of diplomatic law established in the vari-ous Vienna Conventions) and the exclusion from theserules of international organizations, which are coveredby such law in accordance with existing instruments.

115. However, since opinions were divided, the Com-mission opted for confining the scope of the draft articlesto couriers and bags of States "in order not to jeopardizethe acceptability of the draft articles", but at the sametime it believed it was appropriate for States to be giventhe choice to extend, if they so wished, the application ofthe draft articles to couriers and bags of, at least, interna-tional organizations of a universal character. Accord-ingly, it prepared and approved draft Optional ProtocolTwo on the Status of the Courier and the Bag of Interna-tional Organizations of a Universal Character, whichstates, in article I:

Article I

The articles also apply to a courier and a bag employed for the offi-cial communications of an international organization of a universalcharacter:

(a) with its missions and offices, wherever situated, and for the of-ficial communications of those missions and offices with each other;

(b) with other international organizations of a universal charac-ter.72

116. According to the two studies prepared by the Sec-retariat on the practice of the United Nations, thespecialized agencies and IAEA concerning their status,privileges and immunities,73 although the United Nationshas used couriers, the dispatch of communications inbags has been much more frequent. In either case, theprivileges and immunities of the United Nations havebeen observed. A few incidents have occurred, however,when government officials, usually minor officials, act-ing in error or in ignorance of international regulations,have opened United Nations bags.

117. Writing to the legal adviser of a United Nationssubsidiary organ after an incident in which customsauthorities had opened a sealed pouch that was beingcarried in a United Nations vehicle, the Legal Counsel ofthe United Nations summarized the legal position as fol-lows:

As a general rule, the diplomatic bag is inviolable; it may not besubject to customs inspection or any other form of interference.Should the receiving State, on suspicion that a diplomatic bag containsimproper objects, open it for inspection but its suspicion prove to beunfounded, the sending State would be within its right to complain ofa violation of international law. On the other hand, if improper objectsare found in the bag, it would be the sending State that is guilty ofabuse of privilege and no complaint from it may lie. This, I believe,sums up the general rule as practised by States.74

118. In 1962, in agreeing to the establishment of apouch service between United Nations Headquarters andits capital, a Member State sought to impose the condi-tion that, in case of doubt, the Government might openthe pouch in the presence of a United Nations official, onthe pretext that it had not signed the General Conven-tion. The United Nations found the condition unaccept-

7 2 For the text of the draft protocol and the commentary thereto, seeYearbook... 1989, vol. II (Part Two) , pp. 48-49.

7 3 See footnotes 13 and 18 above.7 4 See document A/CN.4/L.118 and Add. l and 2 (footnote 13

above), p . 260, para. 225 .


able and pointed out that, under the technical assistanceagreement which the Member State had concluded ear-lier, the State had agreed to apply the said Convention inrespect of technical assistance operations for which thepouch service was required. The Government withdrewthe restriction and granted the United Nations the right touse the diplomatic bag unconditionally.75

119. In the case of the regional commissions of theUnited Nations, some of the relevant agreements—theAgreement between the United Nations and Chile relat-ing to ECLA (art. Ill, sect. 6), the Agreement betweenthe United Nations and Thailand relating to ECAFE (art.V, sect. 13 (b)) and the Agreement between the UnitedNations and Ethiopia relating to ECA (art. Ill, sect. 6)—expressly provide that the correspondence which may besent by courier or in (sealed) diplomatic bags includes"publications, documents, still and moving pictures,films and sound recordings".

120. Again according to the information transmittedby the specialized agencies, the majority of them do notuse codes or dispatch correspondence by courier or inbags. Those that do so state that they have not experi-enced any problem in securing appropriate recognitionof their rights in this regard.76

(d) Diplomatic couriers

121. As has been said, this means of communication isinfrequently used by the United Nations and thespecialized agencies. However, it should be pointed outthat, in the draft articles on the status of the diplomaticcourier and the diplomatic bag not accompanied by dip-lomatic courier prepared by the Commission, an efforthas been made to fill the gaps that exist in the conven-tions in the field of diplomatic law drawn up underUnited Nations auspices in respect of the definition of"diplomatic courier" and "diplomatic bag" and thestatus and, more particularly, the privileges and immun-ities of the diplomatic courier. As noted above(para. 115), these rules do not cover internationalorganizations; their extension to such organizations ispurely optional and effected by accession to draft Op-tional Protocol Two to those articles.

(e) Postal services

122. It has been suggested that internationalorganizations could become more independent, and infact there is currently a trend in this direction as far aspostal services are concerned, the idea being that theorganization itself should operate its own postal services,independently of the State in which its headquarters issituated. Thus far, States, for obvious reasons, have beenreluctant to accept this situation, in particular for securityreasons. At present, only the United Nations has its ownpostal administration, separate from that of the UnitedStates of America, at its New York Headquarters. Noneof the specialized agencies or IAEA has such a service.

123. The United Nations Postal Administration wasestablished by a General Assembly decision of 1 Janu-ary 1951, in accordance with General Assembly resolu-tion 232 (III). The United Nations has entered into spe-cial agreements with the United States and withSwitzerland regarding the operation of postal facilities inUnited Nations premises situated in those countries. Byand large, these agreements have worked smoothly.

124. After the Agreement with the United States hadbeen signed, it proved necessary to examine the exact di-vision of functions between the United States Post Of-fice Department and the United Nations Postal Admini-stration with particular reference to the sale andcancellation of stamps for philatelic purposes. After dis-cussions with the United States Post Office Department,one of the provisions of the Agreement was amended.77

125. Under the Agreement with Switzerland theUnited Nations agreed to use exclusively Swiss postagestamps for the statutory franking of postal dispatchessent by the Geneva Office; the stamps were imprintedwith a surcharge designating them as the official stampsof the said office. The 1949 Agreement was abrogatedby the Postal Agreement of 11 December 1968, whichwas similar to the Postal Agreement concluded with theUnited States in 1951. The 1968 Agreement establishes aPalais des Nations post office at Geneva, to be operatedby the Swiss Postal, Telephone and Telegraph Depart-ment. The United Nations is authorized to issue, at itsown expense, all the postal items (postage stamps in de-nominations expressed in Swiss francs, postcards andairletters) necessary for the operation of the postal ser-vice, which are the only ones that may be sold at thispost office. The Agreement also authorizes the establish-ment by the United Nations of a special service forphilatelic purposes.

126. The United Nations has also made special postalarrangements in respect of mail sent to or by United Na-tions peace-keeping forces. The exchange of letters con-stituting an agreement concerning the status of UNEF inEgypt contains such a provision (para. 31). The Agree-ment concluded with Lebanon by an exchange of lettersconcerning the UNEF postal services provides for the es-tablishment of a UNEF base post office at Beirut.

127. Similar provisions are contained in the Agree-ment relating to the legal status, facilities, privileges andimmunities of the United Nations in the Congo(para. 35) and in the exchange of letters between Cyprusand the United Nations constituting an agreement con-cerning the status of the United Nations Peace-keepingForce in Cyprus (para. 31).

128. As noted above, none of the specialized agenciesor IAEA possesses postal services like those of theUnited Nations. Nevertheless, the Agreement betweenSwitzerland and ILO and the Agreement between Swit-zerland and WHO provide for the issue of special stamps{timbres de service) by the Swiss federal authorities forthose organizations, within the limits authorized by the

75 Ibid., para. 226.76 Ibid., p. 312, para. 99; and document A/CN.4/L.383 and Add. 1-3

(see footnote 18 above), p. 197, paras. 116-117.

77 The amendment consisted of the deletion of the words " in re-sponse to orders received by mai l" at the end of the first sentence ofparagraph (ii) of section 3 of the Agreement (United Nations, TreatySeries, vol. 149, p. 414).


UPU conventions. Stamps have also been issued for theother specialized agencies with headquarters in Switzer-land.

(f) Telecommunications; broadcasting services

129. The use of radiocommunication by internationalorganizations creates the same problems as its use bydiplomatic missions. These problems derive from reluc-tance on the part of States, prompted mainly by securityconsiderations, and from the original allocation of fre-quencies in application of the International Telecommu-nication Convention of Atlantic City. Accordingly, theVienna Convention on Diplomatic Relations establishesa limitation by providing, in article 27, paragraph 1, that"the mission may install and use a wireless transmitteronly with the consent of the receiving State".

130. If international organizations are treated in thesame way as diplomatic missions in this regard, the limi-tation applies also to them. The problem arose at thetime of the League of Nations in relation to the establish-ment of "Radio-Nations" and was solved by the conclu-sion of the Agreement of 21 May 1930 between theSwiss Government and the League of Nations concern-ing the establishment and operation of a wireless stationin the neighbourhood of Geneva.78

131. Neither the General Convention, in article III,section 9, nor the Convention on the Privileges and Im-munities of the Specialized Agencies, in article IV, sec-tions 11 and 12, contains a specific reference to the sub-ject. However, the Agreement concluded with the UnitedStates of America regarding the Headquarters of theUnited Nations regulates the matter in some detail in ar-ticle II, section 4. According to these provisions theUnited Nations may establish and operate in the head-quarters district

(1) its own short-wave sending and receiving radio broadcastingfacilities, including emergency link equipment, which may be used onthe same frequencies (within the tolerances prescribed for the broad-casting service by applicable United States regulations) for radiotele-graph, radioteletype, radiotelephone, radiotelephoto, and similarservices.

The same section contains a series of technical provi-sions and provisions concerning related facilities.

132. Similar provisions may be found in other agree-ments concluded by the United Nations, such as the ar-rangement with Switzerland in 1946, the Agreementwith Thailand relating to ECAFE, which also providesfor the operation of telecommunications circuits and ofradio services, and the Agreement with Ethiopia relatingto ECA.

133. In addition to the provisions contained in generalhost agreements, the United Nations has made arrange-ments, usually on the basis of an exchange of letters, forthe operation of United Nations radio stations in a num-ber of countries.79 In 1955, an aide-memoire was pre-pared by the Office of Legal Affairs setting out the es-

sential legal points which needed to be considered beforetelecommunication operations or negotiations could beundertaken in any given country.80

134. The aide-memoire referred to article 26 of the In-ternational Telecommunication Convention adopted atBuenos Aires, article XVI of the Agreement between theUnited Nations and ITU annexed thereto, and GeneralAssembly resolutions 240 (III) and 460 (V) whereby theAssembly approved the establishment and operation ofthe United Nations telecommunications system. In par-ticular, it contained model provisions for inclusion inagreements concerning United Nations administrativecentres, which have since been reproduced in a numberof such instruments.81

135. As we have seen, ITU has resolutely opposed theestablishment of a telecommunications network for thespecialized agencies. The United Nations had requestedthat traffic of the specialized agencies should be carriedon its network. The Plenipotentiary Conference of ITUheld at Buenos Aires in 1952 declared, in resolutionNo. 26, that in normal circumstances the United Nationstelecommunication network should not be used to carrythe traffic of the specialized agencies "in competitionwith existing commercial telecommunication net-works".82 ITU confirmed that position at the MontreuxConference in 1965 in resolution No. 25.83

136. However, some communications of thespecialized agencies concerning matters of interest to theUnited Nations are considered as communications of theUnited Nations and, as such, are carried by the UnitedNations network. In 1971, traffic originating in Genevaand consisting of communications of specialized agen-cies with regard to matters concerning the United Na-tions accounted, in terms of the number of words, formore than double the traffic of the United Nationsproper 84

137. The effect of the restriction referred to above isless noticeable following the signing on 3 August 1972of a contract regarding the establishment of a telex linkbetween New York and Geneva. This link, which usessubmarine cables and overland lines, replaces the previ-ous system between the two cities and is available foruse by the specialized agencies according to the condi-tions laid down in ITU resolution No. 26.

138. The tendency among international organizationstowards trying to secure greater independence for theircommunications contrasts with the attitude of States,which are anxious to guarantee their own security. Thetwo sides are constantly vying with one another. On theone hand, the internal development of internationalorganizations prompts them increasingly to try to high-light their international character, their own personality

7 8 See M. O. Hudson, ed., International Legislation, vol. V, 1929-1931 (Washington, D.C., 1936), pp. 494 etseq., Nos. 257 and 257a.

7 9 See "Un i t ed Nations telecommunication sy s t em" in Everyman'sUnited Nations, 8th ed., (Sales No. E.67.I.5), pp. 482-483.

8 0 See document A/CN.4/L.118 and Add. l and 2 (footnote 13above), p. 262, para. 234.

81 Ibid., pp. 262-264, paras. 234-238.8 2 ITU, International Telecommunication Convention, Buenos

Aires, 1952, pp. 155-156.8:5 See ITU, International Telecommunication Convention, Mon-

treux, 1965, pp. 204-205.8 4 See Duffar, op. cit., p. 224.


as distinct from that of their member States and, as a re-sult, to show that they are not answerable to States nordependent upon their services. States, for their part, can-not remain indifferent to the prospect of seeing interna-tional organizations replace them in the exercise of func-tions that traditionally have been within their exclusivecompetence. Both theory and current practice seek tostrike a balance between the two trends, whereby thefundamental interests of both parties concerned would berecognized.

139. At first glance, international organizations wouldseem to have the advantage over States in so far as offi-cial communications are concerned. Article 27 of the Vi-enna Convention on Diplomatic Relations, which, as al-ready noted, applies also to international organizations,states in paragraph 1 that "the receiving State shall per-mit and protect free communication on the part of themission for all official purposes." Thus, so long as theState is informed of the official nature of the communi-cations, such communications are protected. This, ofcourse, does not present any major problem; all that isneeded is some simple external identifying marks. Thedifficulty had arisen over what was to be understood by"official purposes". Uncertainty in this matter was dis-pelled after the adoption of the Vienna Convention onDiplomatic Relations, which, in defining the expression"official correspondence", emphasizes once again thefunctional criterion. Indeed, article 27 provides, in para-graph 2:

2. The official correspondence of the mission shall be inviolable.Official correspondence means all correspondence relating to the mis-sion and its functions.

140. This provision, which applies to diplomatic mis-sions, applies with all the more reason to internationalorganizations. The functional requirement alone definesthe extent of the official nature of the correspondence.All communications of international organizations areconsidered official in so far as the internationalorganizations themselves confer this character uponthem.

141. So far, only the United Nations has felt the needto have its own means of communication, because thenature of its functions places upon it a far-reaching andhighly delicate global responsibility. Obviously, in timesof serious crisis the United Nations would need to besure that it would not be cut off as a result of an interrup-tion in public communications systems. It is also obvi-ous that, although this is desirable in the case of theUnited Nations, it does not appear to be equally desir-able for each and every international organization.

142. Once they are covered by the diplomatic regime,which permits them to secure the inviolability of all theircommunications since they are all considered officialand consequently inviolable without distinction whatso-ever, like those of diplomatic missions, it would seemlogical that international organizations should seek to es-tablish their own communications and telecommunica-tions networks so as to be totally free of control by anddependence on States.

143. Such a situation, naturally, must give rise toalarm on the part of a State that is acting as host to aninternational organization. The State feels that if it can-

not control and monitor the means of communication,the latter may be used by interests contrary to its own.That would seem to be what motivates States to seekways of preserving and guaranteeing their security.

144. In this regard, the system established by theVienna Convention on Diplomatic Relations does notreally meet the security requirements of States and istherefore not considered entirely satisfactory. As weknow, this is the regime that also applies to internationalorganizations. Some States apply what they consider acustomary rule and open diplomatic bags, to the detri-ment of the principle of inviolability, whenever they feelthat the external appearance of the bag gives rise to sus-picion concerning its contents.85 The Vienna Conventionon Consular Relations embodies such a rule, but only inconnection with consular bags. Article 35 of this Con-vention provides, in paragraph 3:

3. . . . if the competent authorities of the receiving State have seri-ous reason to believe that the bag contains something other than thecorrespondence, documents or articles referred to in paragraph 4 ofthis Article, they may request that the bag be opened in their presenceby an authorized representative of the sending State. If this request isrefused by the authorities of the sending State, the bag shall be re-turned to its place of origin.

145. On the other hand, the Vienna Convention onDiplomatic Relations embodies the principle of absoluteinviolability of communications. It does not provide forany exceptions to this principle. Not only does the re-ceiving State have the obligation to protect the freedomof diplomatic communications but it is also required, inall cases, to refrain from opening, intercepting or tryingto decipher them.86

146. The Commission did not consider it appropriate,in the draft articles on the status of the diplomatic cou-rier and the diplomatic bag not accompanied by diplo-matic courier, the final text of which it adopted at itsforty-first session, in 1989,87 to close the loopholes in theVienna Convention in this area. After extensive discus-sions, it decided to provide, in article 28 of the draft, foran exception to the principle, but only in the case of theconsular bag. Article 28, which the Commission consid-ered the key provision on the draft articles, reproduces inparagraph 2 the wording of article 35, paragraph 3, ofthe Vienna Convention on Consular Relations.

147. The Commission explains its position in this re-gard in the commentary to article 28 by stating that. . . while the protection of the diplomatic bag is a fundamental princi-ple for the normal functioning of official commnications betweenStates, the implementation of this principle should not provide an op-portunity for abuse which may affect the legitimate interests of the re-ceiving or transit States.1"*

It then adds, with regard to non-discrimination and reci-procity:. . . nothing precluded States from introducing by agreement, in theirmutual relations, other practices regarding the diplomatic bag. In par-ticular, they could agree to submit the consular bag to the diplomaticbag regime or vice versa.xy

8 5 See Cahier, op. cit., p. 214.8 6 Ibid., p. 213.8 7 See Yearbook... 1989, vol. II (Part Two) , pp. 14 et seq.8 8 Ibid., p. 43 , para. (8) of the commentary.8 9 Ibid., p. 44, para. (10) of the commentary.


148. With regard to international organizations, thelatter solution has, in fact, been adopted. A series of in-struments provide for the treaty approach in guarantee-ing the security of the State, either through a specificagreement on communications or through an agreementon security in general.

149. An example of an agreement on communicationsis the Convention on the Privileges and Immunities ofthe Specialized Agencies, which states in article IV, sec-tion 12, third paragraph:

Nothing in this section shall be construed to preclude the adoptionof appropriate security precautions to be determined by agreement be-tween a State party to this Convention and a specialized agency.

It is interesting to note that the corresponding provisionof the General Convention, namely article III, section 10,contains no reference to the possible adoption of securityprecautions.

150. Most specialized agencies, and IAEA, have notformally adopted security precautions as envisaged in ar-ticle IV, section 12, of the Convention on the Privilegesand Immunities of the Specialized Agencies. In accord-ance with airport security regulations, however, FAOpouches arriving from certain points have been subjectto X-ray examination.

151. A number of WHO agreements are subject to thecondition that they shall not derogate or abridge the rightof the host Government to take the precautions necessaryto protect the security of the State. State authorities arenone the less obliged, whenever they deem it necessaryto adopt measures for the protection of security, to ap-proach WHO as rapidly as circumstances allow in orderto determine by mutual agreement the appropriate meas-ures to be taken. Likewise, WHO is required to collabo-rate with the authorities of the host countries to avoidprejudice to security because of WHO activities.90

152. The Agreement regarding the headquarters ofICAO concluded with Canada provides, in article IX,section 40, that nothing in the Agreement shall be con-strued as in any way diminishing, abridging, or weaken-ing the right of the Canadian authorities to safeguard thesecurity of Canada, provided the Organization shall beimmediately informed in the event that the CanadianGovernment shall find it necessary to take any actionagainst any person enumerated in the Agreement.

153. An example from the second category, i.e. instru-ments referring to security in general texts and not solelywith respect to communications, is the Agreement be-tween Switzerland and ILO, article 25 of which reads asfollows:

Article 25. Security of Switzerland

1. Nothing in the present Agreement shall affect the right of theSwiss Federal Council to take the precautions necessary for the secu-rity of Switzerland.

2. If it considers it necessary to apply the first paragraph of thisArticle the Swiss Federal Council shall approach the International La-bour Organisation as rapidly as circumstances allow in order to deter-

90 See document A/CN.4/L.383 and Add. 1-3 (footnote 18 above),p. 197, paras. 118-119.

mine by mutual agreement the measures necessary to protect the inter-ests of the International Labour Organisation.

3. The International Labour Organisation shall collaborate withthe Swiss authorities to avoid any prejudice to the security of Switzer-land resulting from its activity.

154. Similar provisions are to be found in the Agree-ment between Switzerland and WHO (art. 25), theAgreement between WMO and Switzerland (art. 24), theAgreement between IAEA and Austria (art. XVIII,sect. 47) and the Agreement between Argentina and thePan American Sanitary Bureau (art. 14).

155. More recently, there has been a tendency tochange the mechanism for the adoption of restrictivemeasures. The trend is to replace the treaty regime ofmutual agreement between organizations and States withthe granting to each member State of the power to takeany precautionary measures in the interest of itssecurity—in other words, to adopt unilateral measures.

D. Draft articles 13 to 17

156. In accordance with the above, the Special Rap-porteur proposes the following wording for part IV ofthe draft articles, relating to publications and communi-cations facilities granted to international organizations:

PART IV

PUBLICATIONS AND COMMUNICATIONSFACILITIES

Article 13

International organizations shall enjoy in the terri-tory of each State party (to this Convention)* the freecirculation and distribution of their publications andpublic information material necessary for their ac-tivities, including films, photographs, printed matterand recordings prepared as part of the public infor-mation programme of an organization and exportedor imported for display or retransmission, as well asbooks, periodicals and other printed matter.

Article 14

International organizations shall enjoy, in the ter-ritory of each State party (to this Convention)* in re-spect of such organizations, for their official commu-nications, treatment not less favourable than that ac-corded by the Government of such State to any otherGovernment, including the Iatter's diplomatic mis-sions, in the matter of priorities, rates and taxes onmails, cables, telegrams, radiograms, telephotos, tele-phone, telefax and other communications, and pressrates for information to the press, cinema, radio andtelevision. However, the international organizationmay install and use a wireless transmitter only withthe consent of the host State.


Article 15

1. The official correspondence and other officialcommunications of an international organizationshall be inviolable.

2. Official correspondence and official communi-cations mean all correspondence and communica-tions relating to an organization and its functions.

Article 16

International organizations shall have the right touse codes and to dispatch and receive their officialcommunications by courier or in sealed bags, which

shall have the same immunities and privileges as dip-lomatic couriers and bags under the provisions of themultilateral conventions in force governing mattersrelating to the diplomatic courier and the diplomaticbag not accompanied by diplomatic courier.

Article 17

None of the above provisions shall affect the rightof each State party (to this Convention)* to adopt thenecessary precautions and appropriate measures inthe interest of its security.

* The words "to this Convention" have been placed in bracketsin order not to prejudge the final form of the draft articles.